EXHIBIT 10.3
FIRST AMENDMENT
TO
INVESTMENT AGREEMENT
THIS FIRST AMENDMENT TO INVESTMENT AGREEMENT (this "First Amendment"),
dated as of January 27, 1999, is among LIH HOLDINGS III, LLC, a Delaware limited
liability company ("LIH Holdings III"), MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY, a Massachusetts corporation ("MassMutual"), MASSMUTUAL CORPORATE
INVESTORS, a Massachusetts business trust ("MMCI"), MASSMUTUAL PARTICIPATION
INVESTORS, a Massachusetts business trust ("MMPI"), and MASSMUTUAL CORPORATE
VALUE PARTNERS LIMITED, a Cayman Islands corporation ("MMCVP"; MassMutual, MMCI,
MMPI and MMCVP being hereinafter collectively referred to as the "MassMutual
Entities"), LIBERTY MUTUAL INSURANCE COMPANY, a Massachusetts corporation
("Liberty Mutual"), BANCBOSTON CAPITAL INC., a Massachusetts corporation
("BancBoston"; LIH Holdings III, the MassMutual Entities, Liberty Mutual and
BancBoston being hereinafter collectively referred to as the "Purchasers"), and
XXXX INTERNATIONAL HOLDINGS, INC., a Delaware corporation (the "Company").
WHEREAS, the Purchasers and the Company originally entered into the
Investment Agreement, dated as of December 22, 1998 (the "Investment
Agreement"), whereby the Company agreed to sell, and the Purchasers agreed to
purchase, in the aggregate, 316,056 shares of the Common Stock, par value $0.10
per share (the "Common Stock"), of the Company and 39,822.9 shares of the Series
B Preferred Stock, par value $.01 per share (the "Series B Preferred Stock"), of
the Company for an aggregate purchase price equal to $5,000,000 (the "Aggregate
Purchase Price") in order to provide a portion of the funds for the acquisition
of all of the outstanding capital stock of Smitty Bilt, Inc. (the "Target");
WHEREAS, the Company and the stockholders of the Target have entered
into a definitive Stock Purchase Agreement, dated as of January 7, 1999 (as the
same may be amended, supplemented or otherwise modified from time to time in
accordance with the provisions thereof, the "Stock Purchase Agreement");
WHEREAS, in lieu of the purchase and sale of the 316,056 shares of
Common Stock contemplated by the Investment Agreement, the Company now desires
to sell to each of the Purchasers, and each of the Purchasers desires to
purchase from the Company, in the aggregate, an additional 31,605.6 shares of
Series B Preferred Stock (in addition to the aforementioned 39,822.9 shares of
Series B Preferred Stock), all without any change in the Aggregate Purchase
Price and otherwise on the terms and subject to the conditions set forth in the
Investment Agreement as amended by this First Amendment; and
WHEREAS, the Purchasers and the Company desire to amend the Investment
Agreement to provide for the changes described above.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this First Amendment, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree to amend the Investment Agreement as follows:
ARTICLE I
AMENDMENTS TO INVESTMENT AGREEMENT
Effective as of the date hereof:
1.1 Series B Certificate of Designation. The definition of "Series B
Certificate of Designation" is hereby amended to read in its entirety as
follows:
""Series B Certificate of Designation" means, collectively, (i) the
Certificate of Designation with respect to the Series B Preferred
Stock filed with the Secretary of State of the State of Delaware of
December 22, 1998, and (ii) an amendment to such Certificate of
Designation, to be filed with the Secretary of State of the State of
Delaware prior to the Closing, which has the sole effect of increasing
the number of shares of Series B Preferred Stock authorized by such
Certificate of Designation to 394,315."
1.2 Section 2.1. Section 2.1 of the Investment Agreement is hereby
amended by deleting "Common Stock and" in the third line of the first sentence
thereof.
1.3 Section 3.3. (a) Section 3.3 of the Investment Agreement is hereby
amended by replacing "292,225" with "394,315" in clause (i) thereof.
(b) Section 3.3 of the Investment Agreement is hereby amended by
replacing: "6,626,838" with "6,310,782", and "292,224.7" with "323,830.3", in
clause (ii) thereof.
1.4 Section 5.5. Section 5.5 of the Investment Agreement is hereby
amended to read in its entirety as follows:
"5.5 Nasdaq National Market. As soon as practicable after any
conversion of the Series B Preferred Stock, the Company shall cause
the shares of Common Stock issuable upon such conversion of the Series
B Preferred Stock to be approved for listing, subject to notice of
issuance, by the Nasdaq National Market."
1.5 Section 6.13. Section 6.13 of the Investment Agreement is hereby
deleted from the Investment Agreement in its entirety.
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1.6 Schedule I. Schedule I to the Investment Agreement is hereby
amended by deleting in its entirety Schedule I thereto and substituting therefor
Schedule I attached hereto. Accordingly, all references to Schedule I in the
Investment Agreement shall hereafter refer to Schedule I attached hereto.
ARTICLE II
MISCELLANEOUS
2.1 Agreement. Except as expressly amended hereby, the Investment
Agreement shall continue in full force and effect in accordance with the
provisions thereof on the date hereof, and this First Amendment shall not be
deemed to waive or amend any provision of the Investment Agreement except as
expressly set forth herein.
2.2 Headings; Construction. The headings used in this First Amendment
have been inserted for convenience of reference only and do not define or limit
the provisions hereof. The parties hereto agree that this First Amendment is the
product of negotiation between sophisticated parties and individuals, all of
whom were represented by counsel, and each of whom had an opportunity to
participate in and did participate in, the drafting of each provision hereof.
Accordingly, ambiguities in this First Amendment, if any, shall not be construed
strictly or in favor of or against any party hereto but rather shall be given a
fair and reasonable construction without regard to the rule of contra
proferentum.
2.3 Governing Law. This First Amendment shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to any choice of law or conflict of law provision or rule (whether of the
State of New York or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of New York.
2.4 Counterparts; Effectiveness. This First Amendment may be executed
in any number of counterparts, each of which will be deemed an original, but all
of which together will constitute one and the same instrument. This First
Amendment shall become effective as of the date hereof.
2.5 Definitions. Unless otherwise specifically defined herein, each
term used herein which is defined in the Investment Agreement shall have the
meaning assigned to such term in the Investment Agreement. Unless the context
otherwise specifically requires, each reference to "hereof", "hereunder",
"herein" and "hereby" and each other similar reference and each reference to
"this Agreement" and each other similar reference contained in the Investment
Agreement shall from and after the date hereof refer to the Investment Agreement
as amended hereby.
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IN WITNESS WHEREOF, this First Amendment has been duly executed and
delivered by the duly authorized officer or other representative of each party
hereto as of the date first above written.
XXXX INTERNATIONAL HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxx
------------------------------------
Name: Xxxxxx X. Xxx
Title: Treasurer
LIH HOLDINGS III, LLC
By: /s/ Xxx X. Xxxxxxxx
------------------------------------
Name: Xxx X. Xxxxxxxx
Title: Authorized Person
LIBERTY MUTUAL INSURANCE COMPANY
By: /s/ A. Xxxxxxxxx Xxxxxxxx
------------------------------------
Name: A. Xxxxxxxxx Xxxxxxxx
Title: Senior Vice President and
Chief Investment Officer
BANCBOSTON CAPITAL INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
[SIGNATURE PAGE TO FIRST AMENDMENT TO INVESTMENT AGREEMENT]
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
MASSMUTUAL CORPORATE INVESTORS
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
The foregoing is executed on behalf of
MassMutual Corporate Investors,
organized under a Declaration of Trust,
dated September 13, 1985, as amended
from time to time. The obligations of
such Trust are not personally binding
upon, nor shall resort be had to the
property of, any of the Trustees,
shareholders, officers, employees or
agents of such Trust, but the Trust's
property only shall be bound.
MASSMUTUAL PARTICIPATION INVESTORS
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
The foregoing is executed on behalf of
MassMutual Participation Investors,
organized under a Declaration of Trust,
dated April 7, 1988, as amended from
time to time. The obligations of such
Trust are not personally binding upon,
nor shall resort be had to the property
of, any of the Trustees, shareholders,
officers, employees or agents of such
Trust, but the Trust's property only
shall be bound.
MASSMUTUAL CORPORATE VALUE
PARTNERS LIMITED
By Massachusetts Mutual Life Insurance
Company, as Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
[SIGNATURE PAGE TO FIRST AMENDMENT TO INVESTMENT AGREEMENT]